Gray v. Liontos, 2026 ONSC 3709
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: David Gray v. Joanne Liontos and Frank Iaizzo
BEFORE: Associate Justice Rappos
COUNSEL: Philip Pollack, for the Plaintiff
Peter Regan, for the Defendants
HEARD: June 24, 2026 (via videoconference)
E N D O R S E M E N T
1The parties appeared before me today for a case conference.
2This Simplified Procedure action is with respect to a motor vehicle accident that occurred on November 10, 2018. The Defendants have alleged that because of the impact of the collision, the vehicle driven by the Defendant Joanne Liontos was pushed into a third vehicle driven by non-party Yasmin Chehrzad. Ms. Chehrzad provided a statement to her insurer with respect to the collision.
3The parties appeared before me at a pre-trial conference on March 5, 2026. The parties were unable to come to an agreement on a trial management plan, as required under subrule 76.10(2) of the Rules of Civil Procedure. The reason for this is that, in the event the Defendants are unable to obtain Ms. Chehrzad’s evidence by way of affidavit, they wish to summons her to provide viva voce evidence at the trial. The Plaintiff opposes this request.
4The Defendants say that Ms. Chehrzad has been unresponsive to e-mails requesting that she swear an affidavit for the trial. As a result, the Defendants now seek an order or direction from the Court permitting the Defendants to summons Ms. Chehrzad to provide viva voce evidence at the Simplified Procedure trial. The parties prepared briefs for the case conference.
5Rule 76 sets out the mechanisms that apply for a trial conducted under Simplified Procedure rules. Significant amendments were made to rule 76 that came into force on January 1, 2020. Prior to the amendments, subrule 76.10(6) provided that “the parties may agree that the trial shall be an ordinary trial or a summary trial under subrule 76.12”. That option was removed.
6Subrule 76.12 now provides that a trial of an action under Simplified Procedure is by way of a summary trial process.
7As described by RSJ MacLeod in Balpinar (Estate) v. Economical Mutual Insurance Company et. al:
(a) the “purpose of the Rule is to provide proportionate and cost-effective trials for modest claims that are too large for Small Claims Court”;
(b) “a summary trial provides for a compressed process in which affidavit evidence is combined with viva voce cross examination and re examination”;
(c) “Evidence in-chief is to go in by affidavit and the witnesses may be subjected to oral cross examination if the other side gives notice of the intention to do so… Some allowance must be made for the truncated nature of the trial and the nature of affidavit evidence”; and
(d) “All parties know what the evidence in-chief will be before the trial begins. The affidavits are supposed to contain all the evidence necessary to prove the points in contention…the affidavits must cover all of the evidence the parties wish to present in-chief”.1
8Subrule 76.12(1) sets out that a trial of an action under rule 76 shall proceed by way of a summary trial. The subrule provides that the parties may “adduce evidence, including any expert evidence, by affidavit and under rule 31.11” (use of examination for discovery at trial).
9That subrule is subject to the trial management plan approved under subrule 76.10(5)(d). However, the contents of the trial management plan to be agreed upon by counsel are set out in subrule 76.10(2). The contents are to include a list of every witness and a division of time between the parties for “the presentation of evidence in chief by affidavit and under rule 31.11… cross-examination of deponents”.
10In a pre-trial conference held under the Simplified Procedure, subrule 76.10(5)(b) provides that the pre-trial conference judge or associate judge shall “fix dates for the delivery of any witness affidavits, including any outstanding expert affidavits”.
11The Defendants note that subrule 76.10(5)(e) provides authority to the court to “make such other order as the judge or the associate judge considers necessary or advisable with respect to the conduct of the proceeding”. The Defendants argue that this is a broad discretionary power under which the Court can determine the manner in which evidence is to be adduced at a Simplified Procedure trial, including viva voce evidence where appropriate.
12Although not specifically cited by the Defendants, subrule 76.10(5)(d) provides that at a pre-trial conference, the court shall approve the parties’ proposed time management plan “with any changes to the order or time of presentation, or any other changes, that the pre-trial conference judge or associate judge may specify, subject to the requirement that the duration of the trial not exceed five days”.
13The Defendants have been unable to locate any published decision where viva voce evidence was permitted under Simplified Procedure since the amendments were made to the rule, either by a trial judge or a judge or associate judge at a pre-trial case conference.
14The Defendants also rely on the procedure used for lien actions under the Construction Act in support of their request. The Defendants note that subsection 50(3) provides that “the procedure in an action shall be as far as possible of a summary character”. The Defendants rely on decisions made in lien actions where the court ordered a witness to provide viva voce evidence where a party was unable to obtain affidavit evidence from a third party.
15In reaching a decision on this issue, the starting point is the jurisdiction available to the Court. An associate judge “has the jurisdiction conferred by the rules of court”.2 An associate judge does not have inherent jurisdiction but rather must find their authority in a statute.3
16A conscious decision was made to alter the nature of how trials are conducted under the Simplified Procedure in 2019. Rule 76 repeatedly provides that evidence is to be adduced by way of affidavit. It was open to the legislature to provide the court with direct authority to order viva voce evidence to be permitted in a summary trial, and they refrained from doing do. I do not believe that the authority granted under subrule 76.10(5)(e) to make “such order” as the Court considers “necessary or advisable with respect to the conduct of the proceeding” can appropriately be used by an associate judge to override the repeated requirements under rule 76 that evidence is only to proceed by way of affidavit.
17With respect to the Defendants’ reliance on decisions made under construction lien actions, I do not believe that they are applicable. The Construction Act only provides that the trial be “as far as possible of a summary character”. That language is far broader and less restrictive than the language contained in rule 76.
18Additionally, the decisions cited were from associate judges (or masters) conducting lien actions that were referred to them under the statute. The powers of an associate judge in a lien action are distinguishable from the terms of trial under Simplified Procedure, since on a reference “an associate judge to whom a reference has been directed has all the jurisdiction, powers and authority of the court to try and completely dispose of the action and all matters and questions arising in connection with the action”.4 That broad granting of authority is far wider than what is provided for with a summary trial under rule 76.
19As a result, having reviewed the briefs and heard submissions from counsel, for the reasons set out above I have concluded that I am unable to grant the request sought by the Defendants at this case conference.
20The Defendants indicate that they still wish to pursue their request for viva voce evidence at the summary trial. As I informed them, it may be that a judge, exercising their inherent jurisdiction to “ensure due process, prevent vexation and to do justice according to law between the parties…to regulate the court’s process and proceedings…in a way that secures convenience, expeditiousness and efficiency in the administration of justice”,5 would be prepared to grant the relief they sought at today’s case conference.
21The Plaintiff notes the trial judge may be in the best position to determine whether to permit viva voce evidence in at trial.
22Given that the trial is scheduled to proceed in March 2028, I do not think it would be advisable for the Defendants to wait until then to make a request to a judge to summons Ms. Chehrzad, as that may result in a delay in the trial being completed on time.
23As a result, if the Defendants still wish to pursue this relief, I suggest that they either schedule an attendance in Civil Practice Court or schedule a case conference before a judge to make their request. If they do so, the parties shall ensure that a copy of this Endorsement is provided to the presiding judge.
24With respect to costs of today’s case conference, they are reserved to be determined by the judge presiding over this matter in Civil Practice Court or at a case conference.
Associate Justice Rappos
DATE: June 24, 2026
Footnotes
- Balpinar (Estate) v. Economical Mutual Insurance Company et. al, 2024 ONSC 7239, paras. 2 and 38-40.
- Section 86.1(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
- D’Eon v. Hosseini, 2021 ONSC 7560, para. 76 [citations omitted].
- Subsection 58(4) of the Construction Act, R.S.O. 1990, c. C.30.
- Endean v. British Columbia, 2016 SCC 42, para. 60.